Jaques v. Gould

Wilde, J. This is an action of debt for rent reserved on a lease of real estate for the term of three years. Before the expiration of the term the lessor died, and this action is brought by his heirs against the lessees. The question to be decided is, whether the lease terminated on the death of the .lessor, or still continued, the rent passing thereupon to his heirs. The clause in the lease on which the question depends is as follows: “To hold the same [premises] for the term of three years from the first day of December, 1845, yielding and [387] paying therefor the rent of $3000 per annum. And the said lessees do promise to pay the said rent in quarter yearly payments of $750, on the first day of March, June, September and December in each year; the first payment to be made on or before the first day of March, 1846, and to quit and deliver up the premises to the lessor or his attorney, peaceably and quietly at the end of the term.” The counsel for the plaintiffs contend, that this clause in the lease is to be construed according to the rule of construction laid down by lord Coke, (Co. Lit. 47): “ If the lessor,” it is said, “ reserve the rent to himself, it shall determine by his death, if he die within the term ; but if he reserves the rent generally, without showing to whom it shall go, it shall go to his heirs.” The same rule of construction is laid down in Plow. 171, where it is said, “ If rent be reserved generally, without saying to whom, the law will make the distribution.” So in Whitlock's Case, 8 Co. 69, 71, it was agreed, that the most clear and sure way to secure rent was, to reserve rent during the term, and leave the law to make the distribution. And this distinction, as to the reservation of rent, is admitted in many other cases. Sacheverell v. Froggatt, 2 Saund. 367; Cother v. Merrick, Hard. 89; Sury v. Brown, Latch, 99, 101. This rule of construction is decisive in the present case. The rent, by the terms of the lease, is reserved generally, and is not made payable to any particular person ; and it is expressly agreed to be paid quarter yearly during the whole term of three years, which clearly shows that it was not the intention of the parties, that the lease should terminate on the death of the lessor; and so it appears also from the facts agreed; for the lessees continued to occupy the demised premises after the death of the lessor, and have paid a part of the rent which accrued after that time. Nor does the lessee’s agreement to deliver up the'premises to the lessor or his attorney, peaceably and quietly, at the end of the term, indicate any different intention; the end of the term in that clause of the agreement must have been understood to refer to the end of the three years; otherwise it would be incon [388] sistent with the other part of the agreement immediately preceding it. There is another ground upon which the plaintiffs would be entitled to the rent in arrear, although the term did terminate on the death of the lessor. By a subsequent clause in the lease, the defendants agreed to pay the rent as above stated, and for such further time as they might hold the same. If, then, the defendants continued to hold over after the death of the lessor, as must be inferred from the facts agreed, although it is not expressly so stated, it is immaterial whether the term terminated at the end of three years, or on the death of the lessor. Another question is raised by the statement of facts, namely, whether the plaintiffs were bound by the lease to make any repairs during the term. But as this question has not been argued by counsel, we presume it was intended to be waived; if not, however, we are of opinion, that by the terms of the lease, the lessees were bound to make all repairs during the term; for they expressly agreed to deliver up the premises at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties, excepted, as the same then were or might be put into by the lessor. Whatever repairs, therefore, might be necessary to keep the premises in as good repair and condition as they were in when the defendants took possession, except as above excepted, they, and not the lessor, or the plaintiffs, were bound to make. Judgment for the plaintiffs.